Exhibit 10.2


 


AMENDMENT
NO. 5


 


AMENDMENT NO. 5, dated as
of August 6, 2004 (this “Amendment”), to the Second Amended and Restated
Master Loan and Security Agreement, dated as of January 30, 2004 (as
amended, supplemented or otherwise modified prior to the date hereof, the “Existing
Loan Agreement”; as amended hereby and as further amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Loan
Agreement”), by and among NC CAPITAL CORPORATION (“NC Capital”),
NEW CENTURY MORTGAGE CORPORATION (“New Century”), NC RESIDUAL II CORPORATION (“NCRII”,
together with NC Capital and New Century, collectively, the “Borrowers”,
each, a “Borrower”), MORGAN STANLEY BANK (“MSB”) and MORGAN
STANLEY MORTGAGE CAPITAL INC. (“MSMCI”) (MSMCI, in its capacity as a
lender, together with MSB, collectively, the “Lenders”, and in its
capacity as agent for the Lenders, together with any successors and assigns,
the “Agent”).  Capitalized terms
used but not otherwise defined herein shall have the meanings given to them in
the Existing Loan Agreement.


 


RECITALS


 


The Borrowers, the
Lenders and the Agent are parties to the Existing Loan Agreement.


 


The Borrowers, the
Lenders and the Agent have agreed, subject to the terms and conditions hereof,
that the definition of “Collateral Value” shall be amended as provided below.


 


Accordingly, the
Borrowers, the Lenders and the Agent hereby agree, in consideration of the
mutual premises and mutual obligations set forth herein, that the Existing Loan
Agreement is hereby amended as follows:


 


SECTION
1.  Amendment.  The definition of “Collateral Value” set forth in Section 1.01 of
the Existing Loan Agreement is hereby amended by (i) replacing the period set
forth at the end of clause (b)(vi) with a semicolon and (ii) inserting in
proper numerical order the following new clause (b)(vii):


 


“(vii)       which has been pledged to the Agent under
the Loan Agreement in excess of 120 calendar days.”


 


SECTION
2.  Conditions Precedent.  This Amendment shall become effective on the
first date (the “Amendment Effective Date”) that all of the following
conditions precedent shall have been satisfied:


 


2.1           Delivered Documents.  On the Amendment Effective Date, the Agent
shall have received the following documents, each of which shall be satisfactory
to the Agent in form and substance:


 

















 


(a)           Amendment.  This Amendment, executed and delivered by a
duly authorized officer of each of the Borrowers, the Lenders and the Agent;
and


 


(b)           Other Documents.  Such other documents as the Agent or counsel
to the Agent may reasonably request.


 


2.2           No Default.  On the Amendment Effective Date, (i) each
Borrower shall be in compliance with all of the terms and provisions set forth
in the Existing Loan Agreement and the other Loan Documents on its part to be
observed or performed, (ii) the representations and warranties made and
restated by the Borrowers pursuant to Section 3 of this Amendment shall be true
and complete on and as of such date with the same force and effect as if made
on and as of such date and (iii) no Default shall have occurred and be
continuing on such date.


 


SECTION
3.  Representations and Warranties. Each of
the Borrowers hereby represents and warrants to the Agent and the Lenders, as
of the date hereof and as of the Amendment Effective Date, that it is in
compliance with all of the terms and provisions set forth in the Loan Documents
on its part to be observed or performed, and that no Default has occurred or is
continuing, and hereby confirms and reaffirms the representations and
warranties contained in Article VI of the Loan Agreement.


 


SECTION
4.  Limited Effect.  Except as expressly amended and modified by
this Amendment, the Existing Loan Agreement and each of the other Loan
Documents shall continue to be, and shall remain, in full force and effect in
accordance with its respective terms; provided, however, that upon the
Amendment Effective Date each reference therein and herein to the “Loan
Documents” shall be deemed to include, in any event, this Amendment and each
reference to the Loan Agreement in any of the Loan Documents shall be deemed to
be a reference to the Loan Agreement as amended hereby.


 


SECTION
5.  Counterparts.  This Amendment may be executed by each of the parties hereto on
any number of separate counterparts, each of which shall be an original and all
of which taken together shall constitute one and the same instrument.  Delivery of an executed counterpart of a
signature page to this Amendment in Portable Document Format (PDF) or by facsimile
transmission shall be effective as delivery of a manually executed original
counterpart thereof.


 


SECTION
6.  GOVERNING LAW. 
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[SIGNATURES FOLLOW]


 


2

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered as of the day and year first
above written.


 


	
   

  	
  BORROWERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NC CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PATRICK
  FLANAGAN

  	
   

  
	
   

  	
   

  	
  Name: Patrick Flanagan

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEW CENTURY MORTGAGE

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PATRICK
  FLANAGAN

  	
   

  
	
   

  	
   

  	
  Name: Patrick Flanagan

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NC
  RESIDUAL II CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PATRICK
  FLANAGAN

  	
   

  
	
   

  	
   

  	
  Name: Patrick Flanagan

  
	
   

  	
   

  	
  Title: President

  



 

















 


	
   

  	
  MORGAN STANLEY MORTGAGE

  CAPITAL INC., as Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PAUL J.
  NAJARIAN

  	
   

  
	
   

  	
   

  	
  Name: Paul J. Najarian

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PAUL J.
  NAJARIAN

  	
   

  
	
   

  	
   

  	
  Name: Paul J. Najarian

  
	
   

  	
   

  	
  Title: Vice President